In the wee hours of Wednesday, the Maharashtrawadi Gomantak Legislature Party (MGP) decided to merge with the ruling BJP, according to a Goa Legislature Secretariat bulletin. The secretariat claimed the merger on the basis of a communication addressed by two of its members – Manohar Trimbak Ajgaonkar and Deepak Prabhu Pauskar – to the speaker, Michael Lobo.
The total strength of MGP is three, and as such, these two members constitute two-thirds of the party, the Secretariat explained while recognising the merger under the Tenth Schedule.
The chief of the MGP, Sudin Dhavalikar apparently did not agree to the merger, and as a result, lost his post as the deputy chief minister in the current government headed by Pramod Sawant.
In rather unusual circumstances, Lobo had to open his office at 1 am on Wednesday to recognise the merger in order to pave the way for Dhavalikar’s ouster from the cabinet as well as for the induction of Pauskar as a minister.
Also read: Without Manohar Parrikar, BJP Stares at Bleak Future in Goa
Tenth Schedule
What does the Tenth Schedule to the constitution say on the merger?
Paragraph 4 of the Schedule deals with the scenario of inapplicability of disqualification on grounds of defection in case of a merger.
Sub-paragraph (1) under it says:
A member of a House shall not be disqualified under subparagraph (1) of paragraph 2 where his original political party merges with another political party and he claims that he and any other members of his original political party — (a) have become members of such other political party or, as the case may be, of a new political party formed by such merger; or (b) have not accepted the merger and opted to function as a separate group (emphasis added)
Sub-paragraph (2) says:
the merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger.
Notably, the two members of the MGP who decided to merge with the BJP did not claim that along with them, the members of the original political party (that is, the organisational wing) had also decided to merge. Even if they had made such a claim, it would have required the speaker some time to verify it. Instead, he granted the merger recognition in a haste during the wee hours of Wednesday.
It is clear that the two MLAs would seek the protection of sub-paragraph (2) of Paragraph 4, which deems such merger of the organisational wing of the party to have taken place if not less than two-thirds of the members of the legislature party agree to such a merger. But the wording of this subparagraph is not fully clear. The words “and only if” after “if” would suggest the following:
Step 1: Organisational wing of the party must merge with another party. This merger would require to be proved by a resolution passed at the party conclave, with a majority of the members of the party general council supporting it.
Step 2: The legislator seeking protection from disqualification, and recognition to his group in the assembly, must claim that the merger of the organisational wing had taken place, and submit proof thereof to the speaker.
Step 3: This merger, however, is not sufficient for legal recognition. Two-thirds of the members of the legislature party too must agree to the so-called merger of the organisational wing of the political party to which they belong. In other words, the merger of the organisational wing of the political party must precede the merger of the two-thirds of the legislature party.
What happened in Goa clearly indicates that two-thirds of the legislature party announced its merger with the BJP without the organisational wing of the party announcing its merger prior to it. The Legislature Secretariat’s bulletin and the news reports of the “merger” are silent on the organisational wing of the party passing any such resolution on a merger with the BJP. Therefore, the so-called “merger” of the two MLAs of the MGP with the BJP on Wednesday is against the Tenth Schedule to the constitution.
Interdependent legislative and organisational wings
It is possible to suggest that if two-thirds of a legislature party agree to the merger, the “organisational” wing of the party is deemed to have agreed to such an arrangement earlier. But the addition of the words “and only if” after “if” makes it clear that parliament, while enacting the Tenth Schedule, intended to make the merger of legislative and organisational wings of the party interdependent to give it legitimacy. The merger of one wing, without the corresponding merger of the other, in the sequence the schedule envisages, would make the act of merger invalid under the law.
Critics of this interpretation of subparagraph (2) of Paragraph 4 may contend that the words “and only if” were used by parliament to emphasise the preceding word, “if”, and therefore, parliament clearly intended that the merger of organisational wing could be deemed to have preceded the legislative wing of the party agreeing to the merger.
It is well settled that provisions of the constitution and the law must be so interpreted not to render one part of it superfluous or redundant. If parliament intended to make the legislative wing of the party subsume the organisational wing, it would not have dealt with the requirement of the merger of the “original political party” separately as a prerequisite for protection from disqualification of a member on the ground of defection.
Parliament has made the agreement of two-thirds of the members of the legislature party to the merger mandatory only to avoid the situation of less than two-thirds of the members seeking similar protection on the ground that the organisational wing of the party had already merged. It does not mean that if two-thirds of the members of the legislature party agree to the merger, then the merger of the organisational wing of the party could be dispensed with. It only means that the speaker need not insist on proof of the merger of the organisational wing of the party.
The use of the word “deemed” does not mean that the merger of the organisational wing of the party need not have taken place prior to the merger of the legislative wing of the party. It only implies that the proof of merger of the organisational wing of the party may be absent, or unobtainable and that it can be condoned for the purposes of the schedule.
The word “deemed” is commonly used for the purpose of creating a statutory fiction, for extending the meaning of some term to a subject matter which it does not properly designate. It cannot be so interpreted so as to defeat the very objects of the schedule, as contemplated by parliament.